Asheville City Council

A proposed 162-unit gated community adjacent to the Asheville Country Club appears to be on hold after City Council indefinitely tabled the developer’s request for a conditional-use permit. Besides placing the ball squarely back in the developer’s court, the case also raised the possibility of updating of some of Asheville’s subdivision regulations.

“This is one of those nights when you say, ‘What was I thinking, running for Council?’” Council member Robin Cape observed late in the nearly seven-hour Feb. 13 session. Both Cape’s Council colleagues and the sizable crowd of residents who turned out for the public hearing seemed to share her frustration.

The large-scale project was proposed by Global Development Resources of Arden for the site of the historic Thoms Estate in north Asheville. The plan calls for clusters of condos and townhouses, a clubhouse and gym, plus large areas of green space. But gates at all entrances would limit access to the property.

Neighbors of the Beaverdam Road site came out in force to protest the development, filling both the Council chamber and the overflow room downstairs. Besides the gates, they aired concerns about increased traffic on the surrounding narrow, winding roads.

“Freedom of land sales is not the freedom to place adjacent neighbors at risk,” declared area resident Robert Phillips.

Crashing the gates

“I am happy to report that my client and your staff were on the same page on a lot of things,” crowed attorney Craig Justus, representing the developer, at the start of his presentation. But he conceded that the gates remained a major point of contention.

Global Development Resources CEO Kent Smith told Council that the gates are essential to making the project profitable. “I’m not talking about opinions or preferences; I am talking about economics,” he said. “Those things lose their price point when they are available to the general public.”

Smith said he hoped the homes would sell for anywhere from $400,000 to more than $1 million apiece, noting, “People pay for open space and access to it.”

But neighborhood residents were fierce in their resistance to gates on the property. “A gated community is an oxymoron,” proclaimed Brad Brock, who lives on Wild Cherry Road, where one proposed entrance to the development would be located. “Gates are built to keep the community out.” One unhappy resident, former city planning staffer Gerald Green, went so far as to call for a moratorium on gated communities in Asheville. “To tell me and my neighbors that we cannot walk on these sidewalks and enjoy these green spaces is an insult to all of us,” he told Council. Green now works as a consultant to developers in Asheville.

Under questioning by Council, Urban Planner Nathan Pennington confirmed that there is no city ordinance on the books prohibiting gates, though he cited language in the traffic-engineering policy that states, “We should avoid them at all costs.”

“As long as they meet all the codes, I’m not sure we could keep them from doing that,” said Pennington.

There oughtta be a law?

Indeed, Smith made a point of noting that he wasn’t asking Council for permission to erect gates but to allow higher-density development. This, he said, would enable him to concentrate the homes in a few areas, leaving more green space intact.

But without any action by Council, Smith maintained, he could move forward with a standard subdivision layout that would have a far greater impact on the neighborhood, spreading houses across the entire property and leaving few or no natural areas. An alternate site map provided by Smith illustrated how this might look. That approach, he noted, would require approval by the Technical Review Committee but not by Council.

“This is not a threat—it’s a plea,” said Smith. “That’s the decision you will have to make.”

The message, however, was clear: Grant the permit or live with the result. And since there’s no city ordinance prohibiting gates, said Smith, he could build a higher-impact community and erect them anyway.

The discussion brought to mind another controversial development that’s now under construction on Beaucatcher Mountain. The Beaucatcher Heights subdivision was cooked up after an earlier plan for a retirement community triggered a protest petition by neighborhood residents. Unwilling to risk the required supermajority vote, Brownlyn Associates—represented, ironically, by Gerald Green—withdrew its request, only to submit a new plan later that did not require Council approval (see “Go Tell It on the Mountain,” Feb. 14 Xpress). The resulting construction has both Kenilworth neighbors and Council members wondering whether new rules are needed to regulate such large developments.

Even Smith seemed to suggest this, saying, “If that’s the easier route, then the system is broken.”

“You’re right,” Mayor Terry Bellamy agreed, noting that the current subdivision ordinance was written at a time when the city wanted to encourage such development, rather than the infill buildings and higher-density approaches Council now prefers.

Having to choose between two unpleasantries irked some Council members, especially with the Beaucatcher situation so fresh in mind. “While what happened in Kenilworth is not the doing of Council, it does frighten me,” said Vice Mayor Holly Jones.

“There’s going to be a subdivision that’s going to be devastating on that mountain,” predicted Council member Jan Davis.

But attorney Robert Dungan, representing a group of unhappy Beaverdam neighbors, said he doubted the topography of the Thoms Estate would accommodate the kind of density depicted on Smith’s alternate subdivision plan, and Bellamy concurred.

Without a definitive answer from planning staff, Council member Brownie Newman was uncomfortable about calling the developer’s bluff. “I’m pretty concerned about what would happen if we don’t work something out,” he said.

Outcome uncertain

Despite overwhelming community opposition and Council’s dislike of gated neighborhoods, the looming prospect of a sprawling subdivision rather than preserving more green space—and the near certainty of restricted access in any case—left Council divided on how to proceed.

Council member Carl Mumpower, defending private-property rights, made a motion to approve the conditional-use permit provided that the developer add pedestrian access, but no one seconded the motion. “I don’t like gated communities, but that’s not my business,” said Mumpower.

Cape, meanwhile, told Smith, “I am tempted to want to work with you,” urging the developer to look beyond an either/or decision on the project. She made a motion proposing a number of adjustments to the plan, including pedestrian and bike access, concealed parking areas, and fewer access points from surrounding streets. Davis seconded the motion, but it found no further support on Council.

In the end, a motion by Mumpower to table the issue indefinitely passed on a 4-3 vote with support from Newman, Davis and Cape.

But the developer remained noncommittal that he could make the changes that would satisfy Council.

“The bottom line is, who do we talk to?” wondered Justus, adding, “All your experts are saying there is no problem.”

Council’s action means a new public hearing would be scheduled if and when the developer brings a new proposal to the table.

Wal-Mart walk

Another developer had better luck with Council, helped by an unusual design. An 82,000-square-foot Wal-Mart on Hendersonville Road will get a face-lift and substantial expansion to accommodate a grocery section.

The 120,000-square-foot store will feature a red-brick facade and architecture that’s more in line with other shopping centers along the commercial thoroughfare, as well as sidewalks and tiered, landscaped parking to create safer pedestrian access and reduce storm-water runoff, engineer Alan Johnson explained. “We worked closely with city staff to provide a final product that we believe will be a model for future development in Asheville,” he said.

But sidewalks alone are not enough to encourage pedestrians, argued Cape, asking the developer to include an additional stairway for people who don’t want to use the winding sidewalk path. “Can we push that envelope a little bit forward?” she wondered.

Johnson wasn’t prepared to give a definitive answer, saying the addition might throw off the whole design. After much backing and filling, however, he agreed to explore the idea with city staff.

Council approved the project—on the condition that the developer work with staff to explore Cape’s request—on a 5-1 vote, with Council member Bryan Freeborn opposed (Bellamy had not yet returned from her trip to Raleigh—see “Road Trip,” elsewhere in this issue). Johnson hesitantly agreed to add the stairway if it proves feasible without significantly affecting the overall design.

A penny earned

Council members took another concrete step in their efforts to address the city’s ailing Civic Center. On a 5-1 vote, they passed a resolution asking the North Carolina General Assembly to approve a 1-cent increase in the occupancy tax on hotel/motel rooms to fund repairs for the Asheville Civic Center and Thomas Wolfe Auditorium. Many other N.C. cities have higher occupancy-tax rates than Asheville/Buncombe’s (currently at 4 percent). The increase would generate an estimated $1.5 million a year in new revenue, Newman told Xpress.

The move came at Newman’s request following a presentation by Max Alexander, who chairs the Civic Center Commission, outlining additional maintenance needs at the facility.

Although various City Councils have talked about the Civic Center for years, no money was ever budgeted for basic infrastructure repairs until last year, when Council members approved some funding.

That fact wasn’t lost on Alexander, who told Council: “In five years of being on the Civic Center Commission, there has been nothing done. And you all did something” by actually allocating some money.

In the past, City Council has sent open-ended resolutions to Raleigh asking for funding options, but this is the first time the city has specified a preferred funding mechanism. Mumpower cast the lone vote against the resolution, saying he didn’t want to put legislators in a position where they had to answer “yes” or “no.”

The final countdown

With the hour growing late, Council decided to continue the meeting until noon on Friday, Feb. 16, and then went into closed session to discuss a recent ruling against the city in its lawsuit against the state concerning the Sullivan Acts. In the closed session, which lasted about an hour, City Council voted to appeal the Wake County Superior Court’s ruling directly to the state Supreme Court. Although there is an appellate court that could have tackled the case, City Attorney Bob Oast advised Council to take it directly to the state’s highest court, Mumpower told Xpress.

The Sullivan Acts, passed by the General Assembly on the eve of the 2005 dissolution of the Water Agreement, prohibit Asheville from charging water customers outside the city limits higher rates (see “Buncombe 1, Asheville 0,” Feb. 14 Xpress). Some see the laws as a way to prevent Asheville from using water as an incentive for voluntary annexation.

Further complicating matters is legislation co-sponsored by state Reps. Bruce Goforth and Charles Thomas and others that would require cities attempting an involuntary annexation to hold a referendum if 20 percent of the residents of the targeted area signed a petition opposing the move. Only those living in the area in question would be able to vote.

If the new referendum legislation passes, Mumpower told Xpress, Asheville’s hands could be tied when it comes to annexation. “I think these folks have stepped in a mud hole here,” said Mumpower, who himself is no fan of forced annexation. “They will create an untenable local-government situation.”